Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1684 (RAJ)

Satish v. State of Rajasthan

2013-09-20

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
Hon'ble GUPTA, J.—This appeal under Section 374 Cr.P.C., has been filed against the judgment dated 21.10.2003 passed by Additional Sessions Judge (Fast Track), Bandikui, Distt. Dausa in Sessions Case No. 47/2003 whereby the appellant has been convicted and sentenced for the offence under Section 302 IPC for simple life imprisonment alongwith fine of Rs. 500/-. 2. The brief facts of the case giving rise to this appeal are that on Parchabayan Ex.P/1 by Smt. Laxmi, FIR No.99/2003 at Police Station Manpur has been registered for the offence under Section 302, 323 readwith 34 IPC. The substance of the information furnished to the police by Smt. Laxmi deceased is that on 30.3.2003 at about 5.30 PM, she was in agricultural field and she heard that a quarrel took place between the children and Satish, Bhagwati, Asha, Meera, Meena and Ashok are assaulting her son, daughter-in-law and grand-daughters. She came to the house, there Satish, the present appellant has poured kerosene with a bucket and lit the fire by match-stick. Kailash and Ramja have seen the incident. After usual investigation charge sheet has been filed against the present appellant which was committed to the Court for trial. Charges have been framed against the appellant for the offence under Section 302, 323 and 323 readwith 34 IPC. The prosecution has examined PW.1 Pinky, PW.2 Maya, PW.3 Ramjilal, PW.4 Kailash, PW.5 Mohan Lal, PW.6 Dinesh Kumar, PW.7 Kamlesh, PW.8 Sardarsingh, PW.9 Kailash, PW.10 Shimbhoo, PW.11 Indraj Singh, PW.12 Jagdish Chandra, PW.13 Banwari Lal, PW.14 Dr. Umraosingh Meena, PW.15 Maliram, PW.16 Dr. Rajesh Kumar Verma and PW.17 Dr. P.K. Saini to support his case and also relied on documents Ex. P/1 to P/23. Statements of accused person has been recorded under Section 313 Cr.P.C. No oral evidence has been produced by the defence and they have relied on Ex.D/1 to D/2. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence this appeal. 3. P/1 to P/23. Statements of accused person has been recorded under Section 313 Cr.P.C. No oral evidence has been produced by the defence and they have relied on Ex.D/1 to D/2. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence this appeal. 3. The contention of the present appellant is that the whole story is concocted one just to falsely implicate the present appellant, the dying declaration is not reliable and trustworthy, in dying declaration four other persons have also been implicated out of them against three no charge-sheet has been filed and for other accused Ashok, dying declaration has not been relied upon hence the dying declaration is clearly found to be unreliable by the court below also; dying declaration has been recorded in violation of police rules; there is no evidence that at the time of deposition, the deceased was in a fit condition to give statement; Pinky (PW/1) has been wrongly shown as eye-witness. PW/5, Mohan Lal has stated that quarrel has taken place between the children in the morning whereas in dying declaration Ex.P/8, it has been stated that quarrel has taken place at the time of incident hence, there are material contradiction in the evidence and conviction is bad. Per contra, the contention of the learned Public Prosecutor is that prosecution has produced ample evidence to prove the guilt of the appellant. He has been rightly convicted. There is no reason to disbelieve Parchabayan of the deceased. It has been corroborated by the evidence of PW/5 Mohan Lal and PW/1 Pinky. Both are family members of the deceased, their presence is natural at the house. Doctor has also stated that at the time of statement, the deceased was in a fit condition to depose. Doctor's signature has also been taken on the statement. Hence, there is no infirmity in the impugned judgment. 4. Heard the learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 5. PW/15 Mohan Lal has stated that Satish -the present appellant brought a Jaricane, he poured the kerosene in the bucket and thereafter poured it on Laxmi Devi and lit the fire. He tried to save her mother. Police came there and Laxmi Devi shifted to hospital. 5. PW/15 Mohan Lal has stated that Satish -the present appellant brought a Jaricane, he poured the kerosene in the bucket and thereafter poured it on Laxmi Devi and lit the fire. He tried to save her mother. Police came there and Laxmi Devi shifted to hospital. His contention is that he has also suffered injuries in the incident and his injury report has been exhibited as Ex.P/4. PW/1 Pinky, grand daughter of the deceased has also stated the incident in the same manner. 6. The contention of the appellant is that PW/1 Pinky is the design witness as PW/5 Mohan Lal has not narrated her presence at the time of the incident. It is true that PW/5 Mohan Lal has stated that at the time of incident, he alone had tried to extinguish the fire and nobody was there to see the incident, but it seems that this statement has been narrated in reference to the fact that nobody from outside there to see the incident or to save Laxmi Devi. PW/1 Pinky is the family member of the deceased and her presence has been shown in Parchabayan narrated by Laxmi that Satish was quarreling with her son, daughter-in-law and grand-daughters and the presence of PW/1 Pinky is natural at the place of incident and PW/5 Mohan Lal and PW1 Pinky has consistently stated that Satish has poured Kerosene on deceased. 7. PW/17 Dr. PK Saini has conducted the post-mortem and he clearly states that cause of death is shock due to dry flame burns hence the post mortem report also supports the fact that death has occurred due to pouring of the kerosene. 8. The contention of the appellant is that no kerosene smell has been found in the dead body but as stated earlier Ex.P/22, post mortem report clearly reveals that the cause of death is dry flame burns and site plan Ex.P/1 also indicates that smell of kerosene has been found at the spot. PW/11 Indar Raj Singh has stated that from scene of occurrence bucket and Jaricane have been seized. PW/11 Indar Raj Singh has stated that from scene of occurrence bucket and Jaricane have been seized. Heirs and skin of the deceased has also been sealed by the doctor and FSL Report (Ex.P/23) stated that on physico-chemical examination, kerosene residue were detected in the traces in the extract of the exhibit contained in the glass bottle which clearly completes the chain that deceased has died due to burns as a result of pouring kerosene on her. 9. Apart from ocular, medical and forensic science report, PW/12 Jagdish Chandra has recorded the statement of deceased in which specific allegations of pouring kerosene has been levelled against the present appellant. The contention of the counsel for the appellant is that it has not been verified by the Doctor that at the time of statement, she was fit for giving the statement. PW/14 Dr. Umrao Singh Meena has been examined. He has been declared hostile by the prosecution but still he has admitted his signature on Ex.P/8 and in cross-examination, he has stated that Laxmi was speaking and she was in a fit condition to give statement. Statement has been recorded in presence of Doctor and Doctor has verified it, there is no reason to accept this contention that Laxmi was not in a fit condition to depose and the learned Public Prosecutor has relied upon Laxman vs. State of Maharashtra- AIR 2002 SC 2973 ; and Sunder Singh vs. State of Uttarnchal (2010) 10 SCC 611 wherein as regards the non-examination of the Doctor, who gave the certificate of fitness, it was held therein that for basing conviction on dying declaration, same must pass all tests of voluntariness, fit condition of mind of maker of dying declaration, witness not being influenced by any other factors and truthfulness of dying declaration. Though importance of evidence of Doctor as regards fitness of maker to make it cannot be understated, yet there could be cases, where though there is no certification by Doctor, still dying declaration can be accepted. On facts of that case, it was held that instant case belonged to such category and thus non-endorsement of Doctor on dying declaration was inconsequential. Here in the present case, PW/14 Dr. On facts of that case, it was held that instant case belonged to such category and thus non-endorsement of Doctor on dying declaration was inconsequential. Here in the present case, PW/14 Dr. Umrao Singh Meena has been examined and he has testified the fact that the deceased was in a fit condition to depose and statement has been recorded in presence of the Doctor, endorsement of the same has also been made on Ex.P/8 only because a specific certificate has not been obtained from the doctor, the dying declaration cannot be discarded which has been otherwise proved by the ocular and circumstantial evidence and hence the dying declaration proves the guilt of the accused appellant beyond reasonable doubt. 10. In the light of the above, that PW/14 Dr. Umrao Singh Meena has stated that Ex.P/8 bears his signature and at that time, Laxmi was speaking and PW/12 Shri Jagdish Chandra has stated that he has recorded the statement of deceased, PW/16 Dr. Rajesh Kumar Verma has medically examined the deceased when she was alive and he has also stated that at the time of examination of Laxmi, she was in her senses. He has examined Laxmi on 30.3.2003 at 11.45 PM and her statement has been recorded much prior to it at 6.00 PM which also speaks that she was in a fit condition to depose when her statement has been recorded by PW/12 Jagdish Chandra and dying declaration has been further strengthened by the evidence of PW/5 Mohan Lal and PW/1 Pinky. 11. The other contention of the appellant is that in the dying declaration, allegations have been levelled against other persons also but no charge-sheet has been filed against them, hence the dying declaration is not trustworthy. It is true that allegation of assault have also been levelled against other persons but as regards pouring of the kerosene and to lit fire, the allegation has been levelled against only Satish. Mohan Lal and Pinky have also corroborated the same, hence statement cannot be discarded as a whole. 12. The court below has rightly relied upon the dying declaration Ex.P/8 and the evidence of PW/5 Mohanlal and PW/1 Pinky. Post mortem report also suggests that death has caused due to fire and FSL report also corroborates the prosecution evidence, hence there is no infirmity in the reasoning and conclusion of the court below. 12. The court below has rightly relied upon the dying declaration Ex.P/8 and the evidence of PW/5 Mohanlal and PW/1 Pinky. Post mortem report also suggests that death has caused due to fire and FSL report also corroborates the prosecution evidence, hence there is no infirmity in the reasoning and conclusion of the court below. It has been proved beyond doubt that the present appellant poured kerosene on the deceased and also lit fire, hence there is no reason to interfere in the findings of the court below. 13. The counsel for the appellant has, in the alternative, emphasized on the fact that the offence has been committed without premeditation of mind and act has been committed in spur of moment in a sudden quarrel between children and does not travel beyond the scope of offence under Section 304 Part-II and reliance has been placed on Muthu Kutty & Anr. vs. State by Inspector of Police, Tamil Nadu, AIR 2005 SC 1473 and his contention is that accused has not intented to kill and he has poured kerosene without knowing the effect of his act, he should be convicted only for the offence under Section 304 Part-II and his sentence be reduced for the period already undergone. Per contra, the contention of the learned Public Prosecutor is that appellant has poured kerosene on the deceased and also lit fire and natural consequence of this act would be death and it does not lie in the mouth of the appellant to say that he has not intended for murder and reliance has been placed on Virsa Singh vs. State of Punjab, AIR 1958 SC 465 and Jai Prakash vs. State (Delhi Administration) (1991) 2 SCC 32 wherein it has been held:- “When a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.” In the facts of the present case, inference can be safely drawn that the act was caused with the intention of causing death and no facts and circumstances have been shown by the appellant which could rebut the inference. It is true that offence has been committed in spur of moment in a sudden quarrel but the act was not accidental or unintentional, the appellant was knowing that what kind of act he is committing and he has to face the consequence. For the sake of arguments it can be inferred that the intention of the appellant was to cause only bodily injury, then also the result is the same as bodily injury which has been caused is sufficient in the ordinary course of nature to cause death and offence will fall under the third clause of Section 300 and no mitigating circumstances have been put by the appellant which could attract any of the Exceptions of Section 300 IPC. The appellant has acted in an unusual manner and on simple quarrel between the children, he has committed the heinous act. The court below has rightly convicted the appellant for the offence under Section 302 IPC. Consequently, the appeal is dismissed. The conviction and sentence imposed on the appellant accused-Satish Under Section 302 IPC is confirmed.